Gne18 v Minister for Home Affairs
[2022] FCA 431
•12 April 2022
FEDERAL COURT OF AUSTRALIA
GNE18 v Minister for Home Affairs [2022] FCA 431
Appeal from: Application for an extension of time and leave to appeal: GNE18 v Minister for Home Affairs [2019] FCCA 2528 File number: NSD 2079 of 2019 Judgment of: LEE J Date of judgment: 12 April 2022 Date of publication of reasons: 21 April 2022 Catchwords: MIGRATION – application for extension of time – application for leave to appeal from interlocutory judgment – whether proposed application raises an arguable ground of appeal – limited prospects of success – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court Rules 2011 (Cth) r 35.13, sch 3 item 15.2
Cases cited: GNE18 v Minister for Home Affairs [2019] FCCA 2528 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: 12 April 2022 Counsel for the Applicant: The Applicant appeared in person, assisted by an interpreter Solicitor for the First Respondent: Ms M Kelly of Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent entered a submitting appearance save as to costs ORDERS
NSD 2079 of 2019 BETWEEN: GNE18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
12 APRIL 2022
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $4,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)LEE J:
Before the Court is an application filed on 13 December 2019 whereby the applicant seeks an extension of time and leave to appeal from orders made on 9 September 2019 by a judge of the Federal Circuit Court of Australia (as it was then), published as GNE18 v Minister for Home Affairs [2019] FCCA 2528 (J).
The background to the matter is set out in detail in the primary judge’s reasons: J [1]–[16]. Those facts are not the subject of any dispute and do not require repetition for present purposes. It suffices to state that the primary judge dismissed an application for judicial review of a decision of the second respondent (Authority) dated 26 November 2018, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCR). By that decision, the Authority reaffirmed a decision of a delegate of the first respondent (Minister) to refuse the applicant a Safe Haven Enterprise (Class XE) (subclass 790) visa.
Given that the primary judge’s decision was interlocutory in nature, any appeal requires leave of the Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The application for leave to appeal before me was filed 81 days out of time: r 35.13 of the Federal Court Rules 2011 (Cth) (FCR). The applicant’s reasons for the delay are fairly economical. Nevertheless, if I were satisfied that there was underlying merit in the proposed substantive application, then I would be minded to grant the extension of time.
The draft notice of appeal advances two proposed grounds of appeal, which are in the following terms:
Ground 1:
The applicant contends that the Authority failed to consider "all aspects" of his claims. The applicant has not provided any particulars to identify which claims the Authority has allegedly failed to consider. In any event, this contention must fail. The Authority set out the claims made by the applicant and considered each of them in turn. The applicant's contention made by this ground represents, in effect, no more than disagreement with the Authority's findings and fails to raise any arguable case for the relief claimed.
Group 2 [sic]:
The Authority failed to assess the harm the applicant might face on the basis of his race and ethnicity. The applicant has not identified the claims he says he made regarding his “race” and “ethnicity” which the Authority failed to consider.
(Emphasis in original).
It is evident that each of the proposed grounds of appeal is in identical terms to that which was advanced before the primary judge, with each being an extract from the primary judge’s reasons: J [22]–[23].
In relation to the first proposed ground, the primary judge found (at J [22]) that the applicant had not provided any particulars to identify the claims that the Authority allegedly failed to consider. Further, it is evident from a review of the Authority’s reasons that, as the primary judge correctly identified, the claims made by the applicant were set out and considered in turn. The Minister submits, with respect correctly, that proposed ground one appears to be no more than a disagreement with the Authority’s findings and does not raise any arguable case for the relief claimed.
As for the second proposed ground, the primary judge determined that the applicant had not identified the claims he made regarding his “race” and “ethnicity” that the Authority is said to have failed to consider: J [23]–[24]. The material before the Authority indicated that the Muslim majority in Bangladesh were of Bengali ethnicity and that the applicant was also of Bengali ethnicity. In these circumstances, unsurprisingly, no claim was made by the applicant as to fearing harm on the basis of race or ethnicity: J [24].
In order to satisfy myself that there was nothing in the underlying materials that might give rise to another proposed ground of appeal, I adjourned for a period in order to obtain the relevant statement of the applicant, which was subsequently admitted as Exhibit A in the proceeding (although the statement of the applicant was not initially before this Court as part of the Court Book). A review of Exhibit A indicates that the applicant’s claims for protection were accurately summarised by the Authority in its reasons and were also accurately identified by the primary judge.
Given that these were the only two grounds advanced before the primary judge, I am unable to discern any error in the conclusion of the primary judge that the applicant failed to demonstrate an arguable case of jurisdictional error by the Authority: J [25]. It follows that it was clearly open (and indeed inevitable) for the primary judge to dismiss the application pursuant to r 44.12(1)(a) of the FCCR. Accordingly, the application for extension of time and leave to appeal must be dismissed.
The Minister submits that it is appropriate for the Court to fix costs payable by the applicant in the amount of $4,000. This amount is significantly less than the amount that can be claimed in a short-form bill for an application involving a migration decision: Sch 3 item 15.2 of the FCR. This seems to me to be reasonable and proportionate in nature to the complexity of the case. It follows there is no reason why costs should not be fixed in the amount of $4,000.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 22 April 2022
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